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A new ruling advises on whether stress or depression is seen as a disability. But reducing the potential for employees to become stressed is in everyone’s interests, says Raphael Prais
When it comes to disabled employees, you may have heard the term ‘reasonable adjustments’ – you understand that staff with medical conditions might be entitled to them, but you’re not sure of the details.
To help you out, we’ve put together a few pointers. We chose this topic partly because of a recent case on the matter relating to workplace stress.
In a nutshell, the law says that if an employee has a disability, and is thereby put at a disadvantage compared with non-disabled employees, then the employer has a duty to take such steps as are reasonable to avoid the disadvantage.
1. Is it disadvantage in general, or does the disadvantage have to arise from the way work is done? The legislation sets out how the disadvantage might arise. Most cases depend on there being a policy or practice that results in the disadvantage.
2. What is reasonable? That depends on all the circumstances, including the size and nature of the business – small firms are not expected to do as much as large businesses.
3. Finally, what’s a disability? It is defined as:
A physical or mental medical impairment; It has a substantial effect on the ability to carry out normal day-to-day activities – ‘substantial’ is defined quite broadly so is not normally the stumbling block; It’s long-term, meaning it has lasted or is likely to last more than 12 months.
Normally these aspects of disability go together – for example, if an impairment lasts more than 12 months it’s probably a medical condition and probably has a substantial effect on
But that’s not always the case. In December the Employment Appeal Tribunal (EAT) considered this issue in the case of Herry v Dudley MBC in relation to stress (most of this case is not novel but simply applies to an earlier EAT case).
The EAT accepted that clinical depression is a medical condition. It also accepted that, at least at a level of ‘deep theory’ (the EAT’s terminology), it will often be difficult to distinguish clearly between stress and depression. However, it is satisfied that these conditions are different. It said stress is a reaction to adverse life events; if those events disappear, the stress should resolve itself.
Sometimes there is nothing you can do – work can be stressful. But often there are things managers can do – for example, if you improve workflow systems, you reduce the need for stressful deadlines.
The manner in which work is given can also affect stress levels – if you describe every piece of work as the most important and urgent thing ever, employees may feel pressured. On the other hand, if you assess the importance of each piece of work and apply this description only to the most important and urgent assignments, employees will be able to pace themselves better.
Almost 7 million people of working age in the UK are disabled or have a health condition, which includes depression. Employing people with a disability can be good for business. You can find out more about this and how to support employees who are disabled at gov.uk/government/publications/employing-disabled-people-and-people-with-health-conditions
A wealth of important information and advice, available online in-case you face dismissal or discrimination claims and employment tribunals.
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National Federation of Self Employed & Small Businesses LimitedSir Frank Whittle Way / Blackpool / FY4 2FE. National Federation of Self Employed & Small Businesses Limited (FSB) is registered in England, number 1263540